Watson v. United States of America

Filing 20

OPINION AND ORDER denying 19 Motion for certificate of appealability. Signed by Judge John E. Steele on 4/20/2009. (RKM)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION HECTOR ROY WATSON, Petitioner, -vsUNITED STATES OF AMERICA, Respondent. ___________________________________ Case No. 2:08-cv-353-FtM-29DNF Case No. 2:06-cr-46-FTM-29DNF

OPINION AND ORDER This matter comes before the Court on Petitioner's Notice of Appeal (Doc. #18) filed on April 15, 2009. Pursuant to FED. R. APP.

P. 22(b)(1), this is deemed to also include an application for certificate of appealability (Doc. #19). Under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order in a habeas proceeding unless a certificate of appealability issues. The decision to issue a certificate of

appealability requires "an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). Specifically, where a district court has rejected a prisoner's constitutional claims on the

merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, When

484 (2000); Peoples v. Haley, 227 F.3d 1342 (11th Cir. 2000).

the district court has rejected a claim on procedural grounds, the petitioner must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; Franklin v. Hightower, 215 F.3d

1196, 1199 (11th Cir. 2000) (per curiam), cert. denied, 121 S. Ct. 1738 (2001). "This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of the claims." Miller-El v. Cockrell, 537 U.S. at 336.

On December 30, 2008, the Court entered an Opinion and Order (Doc. #14) denying petitioner's Omnibus Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28 U.S.C. § 2255 & Memorandum of Legal Citations of Authority as to all claims. Judgment (Doc. #15) was entered the same day. On April 10, 2009,

petitioner filed a Motion for an Extension of Time to File Notice of Appeal, Pursuant to Fed.R.App.P. 4(a)(5) (Doc. #16). On April

15, 2009, the Court granted the extension of time and directed the Clerk to file the proposed Notice of Appeal. Notice of Appeal was filed on April 15, 2009. (Doc. #17.) The

Upon review of the

file, the Court finds that petitioner has failed to show that jurists of reason would find the Court's assessment of the

constitutional claim debatable or wrong or that the Court was incorrect in its procedural rulings. Accordingly, it is now
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ORDERED: Petitioner's application for certificate of appealability (Doc. #19), deemed included in the Notice of Appeal, is DENIED. DONE AND ORDERED at Fort Myers, Florida, this April, 2009. 20th day of

Copies: All Parties of Record United States Court of Appeals Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, GA 30303

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